ANGELA CHEN v. WAI WAI CHEN

HCAP 10/2020

[2024] HKCFI 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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D E C I S I O N

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A.  INTRODUCTION

1.  This is the hearing for the summons dated 17 February 2023 (“Summons”) taken out by the defendant (“Vivien”) against the plaintiff (“Angela”) for specific discovery.

2.  This is a probate action in respect of Madam Yang’s estate commenced by Angela, Madam Yang’s elder daughter, to propound Madam Yang’s will dated 15 February 2008 (“2008 Will”), which left all of her assets to Angela and appointed her as sole executrix.

3.  Vivien, the younger daughter, seeks to propound instead Madam Yang’s will dated 27 October 2004 (“2004 Will”) under which there would be an equal division of her assets and Vivien would be appointed a co-executrix with Angela.  Vivien challenges the validity of the 2008 Will on the grounds of (i) lack of testamentary capacity; (ii) no knowledge and approval; and (iii) that the 2008 Will was procured by undue influence, fraud, and/or fraudulent calumny on the part of Angela.

4.  The Summons is supported by the 3^rd Affirmation and 4^th Affirmation of Siu Yat Fung Anthony dated 17 February 2023 and 11 September 2023 respectively (“Siu 3” and “Siu 4”).  It is opposed by the 6^th Affidavit of Chan Heung Wing dated 11 July 2023 (“Chan 6”) and the 7^th Affidavit of Chan Heung Wing dated 11 July 2023 exhibiting the 8^th Affirmation of Angela dated 11 July 2023 (“Angela 8”).

5.  Vivien seeks a wide range of documents concerning the preparation and drafting of the 2008 Will, the General Power of Attorney dated 15 February 2008 (“2008 GPOA”), the (unexecuted) Statutory Declaration on Madam Yang’s aliases (“Aliases SD”) (collectively, the “Subject Matters”), the statutory declaration dated 19 November 2014 by Mr Wong Tak Shing (“Tak Wong”) in relation to the preparation of the 2008 Will (“SD”), two testamentary dispositions dated 11 April 2005 and 3 December 2005 respectively (“2005 Codicils”), as well as Madam Yang’s medical reports.

6.  Angela has described Vivien’s approach as one of carpet bombing, and the widely formulated classes in the Summons as fishing expeditions.  Angela submits that Vivien’s approach, if left unrestrained, will result in an uncontrolled amount and scope of disclosure for the trial set down for September 2025, with implications for the preparatory steps taken between now and the trial.

B.  BACKGROUND

B1.  The underlying dispute

7.  There is a long history of acrimony between Madam Yang and Angela on one side, and Vivien on the other.  Thus far, it has culminated in, inter alia, two judgments by Anthony Chan J in HCA 1739/2010 dated 29 November 2016 (“1739 Trial Judgment”) and 20 January 2020 (“1739 Locus Judgment”) respectively.  Vivien’s appeal from the 1739 Trial Judgment has been dismissed by the Court of Appeal.

8.  Madam Yang was the wife of the late Dr Chen until their divorce in 2011.  In January 2003, Dr Chen told Madam Yang that he had transferred approximately HK$18 billion worth of assets to Vivien (“CHL Exercise”) which, as it transpired, was an exercise to avoid potential estate duty.

9.  After discussions in 2003 and 2004, Dr Chen decided to distribute to Angela and Vivien each HK$4.5 billion worth of assets, out of which each of them was to transfer HK$1.5 billion worth of assets to Madam Yang.  Disputes then arose as to Vivien’s performance of her transfer obligations.  Madam Yang alleged that Vivien had taken unfair advantage of her.  Madam Yang’s claims were upheld in the 1739 Trial Judgment.

10.  In October 2004, Madam Yang made the 2004 Will, whereby Madam Yang bequeathed her estate to Angela and Vivien in equal shares.

11.  Madam Yang further executed two testamentary dispositions on 11 April 2005 and 3 December 2005 respectively, ie the 2005 Codicils. The former bequeathed Madam Yang’s interest in companies holding certain properties to Angela.  The latter bequeathed, inter alia, all of Madam Yang’s properties in the US to Angela.

12.  Between 2003 and 2006, negotiations took place between Angela and Vivien over a proposed agreement (“50/50 Agreement”) regarding the distribution of Dr Chen’s assets.  But those negotiations later fell apart.

13.  On 25 January 2008, Tak Wong was instructed to draft a Will for Madam Yang.  He then produced a draft Will (“First Draft Will”), which provided that all of Madam Yang’s US assets were to go to Angela; and the residuary estate was to go to Angela and Vivien in equal shares.

14.  On 12 February 2008, Tak Wong was instructed by Madam Yang (through Angela) to revise the First Draft Will to name Angela as the sole executrix and sole beneficiary (“12.2.08 Instructions”).  Accordingly, the second draft Will (“Second Draft Will”) was prepared.

15.  The Second Draft Will (with Madam Yang’s handwritten annotations) was faxed to Tak Wong.  A third draft Will was prepared (“Third Draft Will”) (which eventually became the 2008 Will).

16.  On 15 February 2008, Tak Wong, Dr Ben Cheung (“Dr Cheung”), Billy Ma (of Hobson & Ma) and Wu Wing Kit (then of Fred Kan & Co (“FKC”)) (“Mr Wu”) attended the family home.  Dr Cheung conducted a medical examination of Madam Yang.  Dr Cheung was satisfied that Madam Yang had testamentary capacity to execute the 2008 Will; and Tak Wong explained the contents of the Third Draft Will to Madam Yang, to which Madam Yang confirmed her understanding and agreement.  The 2008 Will was executed by about 20:22.  The 2008 GPOA appointing Angela as Madam Yang’s attorney was executed at 20:40.

17.  Between 2008 and 2014, Madam Yang executed further documents, which Angela submits, further confirmed that she had testamentary capacity, and knowledge and approval of, the 2008 Will.  They include (1) a trust deed appointing Angela as trustee of Madam Yang’s assets on 26 June 2008 (“2008 Trust Deed”), (2) a Chinese declaration on 17 September 2008 (“Will Declaration”), (3) various gift documents on 12 December 2012 (“Gift Documents”), and (4) a further declaration on 2 May 2014 (“2014 Solemn Declaration”).

18.  On 12 December 2012, Madam Yang executed a Gift Declaration whereby she declared her intention to achieve the early completion of her gift to Angela under the 2008 Will by a Deed of Gift. She also executed a Deed of Gift to like effect.  In the 1739 Locus Judgment, Anthony Chan J found no evidence that the validity of the Gift Declaration and the Deed of Gift were tainted.

19.  On 19 November 2014, Tak Wong made the SD for the purposes of defending an anticipated challenge to the 2008 Will after Madam Yang’s death.

B2.  The parties’ pleaded case

20.  Vivien contends that Madam Yang lacked testamentary capacity to make the 2008 Will because she allegedly had mistaken and delusional beliefs, including that (1) Angela has been unfairly treated by Dr Chen and Vivien; (2) Vivien has received more valuable assets than Angela from Dr Chen’s distribution of wealth; (3) Vivien has reneged on her promise to share half of what she had received from Dr Chen with Angela; and (4) it was necessary to make Angela the sole beneficiary to redress the wrongs which Angela had suffered and to achieve equality in the overall distribution of Dr Chen’s and Madam Yang’s assets.[1]

21.  Alternatively, Vivien contends that there were suspicious circumstances such that the court would require the plaintiff to affirmatively prove knowledge and approval of the contents of the 2008 Will. The alleged suspicious circumstances were,[2] inter alia:

(1)  Tak Wong was not acting as an independent solicitor of Madam Yang and failed to carry out his advisory duties properly.[3]

(2)  The 25 January 2008 Instructions given to Tak Wong and the terms of the First Draft Will did not indicate Madam Yang’s testamentary intention to cut Vivien out of any new will. Yet by the 12 February 2008 Instructions, Angela instructed Tak Wong to revise the First Draft Will to name Angela as the sole beneficiary.[4]

(3)  The SD contained various omissions and the instructions given by Angela to Tak Wong had been highly selective.[5]

(4)  Wong Shum & Co(“WSC”)’s destruction of the will file (“Will File”) in about June 2015 was extraordinary and highly suspicious.[6]

(5)  Other than WSC, there were other lawyers involved in the drafting, advising or execution of the 2008 Will.[7]

22.  Alternatively, Vivien contends that the 2008 Will was made under Angela’s undue influence,[8] fraudulent calumny,[9] and/or fraud.[10]

23.  Vivien’s case is based on inference.[11] 

24.  Angela denies these allegations.  Furthermore, Angela has pleaded that:

(1)  Madam Yang made the 2008 Will in place of the 2004 Will because (a) Vivien did improper things which disturbed the equality of the asset distribution by Dr Chen amongst Angela and Vivien; (b) Vivien told Madam Yang previously that she did not want any of Madam Yang’s assets; (c) Vivien was not willing to sign the 50/50 Agreement.[12]

(2)  The above is stated in Madam Yang’s (1) answers to Tak Wong’s questions on 15 February 2008; (2) answers during her medical examinations; (3) statements in the Will Declaration; and (4) Vivien’s confirmation on 23 January 2010 that she had told Madam Yang she did not want Madam Yang assets.[13]

(3)  Madam Yang was medically examined before executing the 2008 Will (and various subsequent documents which affirmed the 2008 Will).[14]  There can be no challenge whatsoever with regard to her testamentary capacity.

B3.  Issues in dispute

25.  Siu 3 §90 summarised the issues in this probate action as follows: “Vivien pleads that the Alleged 2008 Will is invalid for various reasons, including lack of testamentary capacity (ADCC §§90A-B) want of knowledge and approval (ADCC §§91-122), undue influence (ADCC §§123-134) and fraud/fraudulent calumny (ADCC §§134A-N).”

26.  For the purpose of the present application, the plaintiff has pointed out that it is pertinent to note that in respect of the issues which Siu 3 identified:

(1)  As has been noted (at paragraph 20 above), Vivien’s case on testamentary capacity is that Madam Yang allegedly had “delusional” beliefs (ADCC §90A).  Vivien does not rely on any medical evidence regarding alleged mental incapacity.

(2)  Insofar as Vivien asserts a case of undue influence, it is well established that there is a different test for undue influence in probate from that found in cases concerning lifetime transactions.  In probate, undue influence means influence exercised either by actual coercion, in the sense that the testator’s will must be overborne, or by fraud: Theobald on Wills (19^th edn, 2021) §§4-058, 4-059.

C.  APPLICABLE PRINCIPLES

C1.  General

27.  In K&L Gates v Navin Kumar Aggarwal, HCA 1061/2011 & HCA 349/2012 (unrep, 27/11/2017) at §15, Lok J sets out (inter alia) the following trite principles:

(1)  There is no jurisdiction to make an order under RHC O24 r7, unless (a) a document exists which the other party has not disclosed, (b) it is in or has been in the respondent’s possession, custody, or power, and (c) the document is relevant: §15(i).

(2)  The discovery must be necessary either for disposing fairly of the cause or for saving costs: §15(ii). 

(3)  Jurisdiction aside, the court has a discretion not to order disclosure: §15(iii).

(4)  The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure: §15(iv).

(5)  Where discovery is sought in relation to a class of documents, it is important that the class should not be defined or described too widely, and should not be defined so as to include documents which are not relevant: §15(v).

(6)  Statements in a party’s affidavit of documents are conclusive.  The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage: §15(vi).

C2.   Relevance

28.  Despite the Peruvian Guano test on relevance, courts have cautioned against an excessively wide application: K&L Gates §16.

29.  “Fishing” is not allowed: K&L Gates §17.  Discovery will not be ordered to enable a party to turn a non-issue into an issue.  It cannot be used to hunt around documents in the hope that they will reveal some improprieties or provide information to pursue more inquiries: Lee Sai Nam v Li Shu Chung, HCA 1711/2009 (unrep, 10/01/2014) §54.

30.  Although relevance will primarily be determined by reference to pleadings, it cannot be dictated by a party unilaterally simply by importing it into the pleadings.  Thus, discovery is not required of documents which relate to irrelevant allegations in pleadings which, even if substantiated, cannot affect the result: K&L Gates v Navin Kumar Aggarwal [2019] HKCFI 702 (“K&L Gates (No 2)”) §7 (Lok J); Allington Investments Corp v First Pacific Bancshares Holdings Ltd [1995] 2 HKC 139, 144H-145C (Jerome Chan J); Li Tak Yee Samuel v Sociéte Générale Bank & Trust, HCA 2478/2009 & HCA 1198/2011 (unrep, 16/04/2013) §27.

C3.    Necessity

31.  If the party establishes a prima facie case for the 3 prerequisites, the party objecting may persuade the court that the discovery is not necessary either for disposing fairly of the cause or matter or for saving costs under RHC O24 r8.

32.  It is necessary to consider where within the spectrum of evidential materiality the documents sought fall.  There may be documents that although they may fall within the letter of the Peruvian Guano test, they are unlikely to contain or yield information of such evidential materiality that justifies the inconvenience of giving discovery: Lee Sai Nam§§49-50.

33.  Discovery should also be sensibly controlled and not used as an oppressive weapon pursued without sufficient regard to economy and efficiency: Billion Lead Investment Ltd v Union Joyce Ltd, HCMP 2145/2011 (unrep, 14/12/2012) §20 (Mimmie Chan J).  This is in line with the CJR’s objectives by promoting proportionality, cost-effectiveness and fairness between the parties: K&L Gates §19.

C4.   Formulation of a class of documents

34.  The 3 prerequisites must be established in respect of the class described as a class, not as regards some in the class only: Li Tak Yee Samuel §37.

35.  The class of documents must be classified by their nature, as opposed to simply as documents going to a particular issue or showing a particular thing: Deak & Co (Far East) Ltd v NM Rothschild & Sons Ltd [1981] HKC 78, 82B-D (Barker JA); K&L Gates (No 2)§6; Li Tak Yee Samuel§41.

36.  The class should not be defined or described so widely as to include irrelevant documents.  One cannot cast the net widely and then say, at least some relevant documents will be caught: Molnlycke AB v Proctor & Gamble Ltd (No 3) [1990] RPC 498, 502 (Mummery J); K&L Gates (No 2) §22.  Otherwise, the person faced with such an order cannot ever be sure that he has complied with it.  It is also more likely to fail the necessity requirement: Lee Sai Nam§§51-52.

37.  Tullett Prebon (Hong Kong) Ltd v Chan Yeung Fong Nick, HCA 2197/2009 (unrep, 9/06/2011)did not relax the above requirements on the proper formulation of a class.  The applicant must still establish that each document is either relevant individually, or relevant as a member of the class of documents: §83. 

38.  Although the blue pencil test may be applied to narrow down the scope of discovery, the court will not reformulate a totally different class: K&L Gates (No 2)§§21-22.  There, the court refused the reformulated request as there was no application to amend the discovery summons (§20), and there was no justification for the applicant to have drafted the original class in a sweeping manner in the first place (§§22-23).

39.  Examples of requests rejected as excessively broad include:

(1)  “[A]ny other documentation held in any medium showing details of access/number of visits and hits to the electronic version of the Magazine and/or the archived copy of the article appearing on pages 68 to 72 of the Magazine”: Morinda International Hong Kong Ltd v Next Magazine Publishing Ltd [2003] 1 HKC 492 §§14-15 (Chung J).

(2)  “Documents pertaining to the Defendants’ business and/or the casino entities related to the Defendants and the relationship between these entitles”: K&L Gates (No 2) §§19, 22.

(3)  “Any and all documentation of Soc Gen created, amended or sent by Soc Gen’s Compliance Department relating to transactions (including but not limited to transfers of money or securities) between Leadenham’s account and the Plaintiff”: Li Tak Yee Samuel §77.[15]

C5.   Conclusiveness of affidavits

40.  Generally: Discovery affidavits are invariably taken at face value.  Generally speaking, affidavits of documents are conclusive as to the relevance and existence or otherwise of documents at the interlocutory stage.  They are conclusive also as to the relevance of blanked-out documents: Li Tak Yee Samuel §§43-44; Lee Sai Nam §55.

41.  Privilege: An affidavit verifying an assertion of privilege (provided that it is as specific as possible but without disclosing the very matters that the claim for privilege is designed to protect) is conclusive unless it is reasonably certain that:

(1)  the deponent has erroneously represented or misconceived the character of the documents;

(2)  the evidence of the claimant of privilege that the affidavit is incorrect; or

(3)  other evidence before the court shows that the affidavit is incorrect or incomplete on the material points.

See: West London Pipeline and Storage Ltd v Total UK Ltd [2008] 2 CLC 258 §86(3) (Beatson J, as he then was); Alireza v Fleet Overseas (New Zealand) Ltd [2020] HKCFI 2802 §§28-29 (Ng J).

42.  I agree with Angela’s submission that Vivien’s reliance on Re Kong Wah Holdings Ltd [2007] 4 HKLRD 620 is misplaced.  The regime for asserting privilege in the investigative procedure under section 221 of the predecessor Companies Ordinance (Cap 32) is more stringent so as to avoid thwarting liquidators’ investigation (§§60-61).  This was expressly contrasted by Kwan J (as she then was) with the position in general adversarial litigation, where it was permissible to give a compendious description by type or category, so long as it was possible to identify them, and provided that the ground of privilege and the facts giving rise to the claim were clearly stated (§§51, 57).

43.  Further and in any event, it must be noted that the principle in Re Kong Wah was that the party claiming privilege would be directed to furnish a further list of documents with details of the claim of privilege: §61.  This was the application: see §42.  This is not the application in the present case.  This was also the result: see §§71-72 (the type of order was known as a “Kadlunga” order, see §61).  In other words, it is not the correct response to say that because no details are furnished, the claim to privilege “would fail in limine”: cf Vivien’s Skeleton §30. 

44.  Similarly, in Re Estate of Nina Kung (No 1) [2009] 4 HKLRD 149, Lam J (as he then was) noted at §3 that:

“Technically, even if the documents were protected by privilege, they should still be set out in the Plaintiff’s list of documents, see Order 24 Rule 5(2). But the court will not make an order under rule 7 if it is not necessary either for disposing fairly of the cause or for saving costs. If the documents are clearly protected by privilege from production, Mr Chan SC did not suggest any reason for requiring an affidavit to be made. I shall therefore deal with the application on the basis that it should be dismissed if I conclude that the Plaintiff is clearly not entitled to production of the documents. On the other hand, if I am not sure on the materials presently before the court whether the Plaintiff can successfully assert a claim for privilege, the proper course is to order an affidavit to be made with liberty to the Plaintiff to claim privilege from production in such affidavit.” (emphasis added)

On the facts, he ordered a further affidavit as to the claim to privilege regarding certain documents: §20.

45.  Indeed, in Hollander: Documentary Evidence in Hong Kong (2^nd ed, 2020) at §14-006, after discussing the old authorities and Re Kong Wah, the learned author suggested that: (1) the position remains unchanged and the practice remains that claims for privilege are invariably made in lists of documents in generic terms; (2) the court has power, when justified on the facts of the case, to require a further and more detailed listing or supporting witness statement which requires particulars of documents for which privilege is claimed.  This is thus never a ground for rejecting a claim for LPP.

46.  Redaction: A heavy burden lies on a party who seeks to challenge the veracity of an oath regarding redaction.  The test is not whether the redaction parts are potentially relevant, and it is not enough that they might provide material for cross-examination as to credit.  The test is whether it is not unreasonable to suppose that the parts redacted do contain information which may, either directly or indirectly, enable a party to advance her own case or to damage the opposing party’s case: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 (Kwan JA, as she then was) §§51-52.

C6.   Legal professional privilege (“LPP”)

47.  Legal advice privilege applies to the drawing up of a will: Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610.  This is because disclosing the reasons for certain provisions after the testator’s death could often cause incalculable harm and misery, hence the public interest lies in minimizing the risk of that happening: §55 (Lord Rodger).

48.  The principles on LPP germane to the Summons can be found in the Decision of this court dated 20 August 2021 ([2021] HKCFI 2436) on Vivien’s discovery application against WSC (“2021 Decision”) concerning the preparation of the 2008 Will and the SD:[16]

(1)  There are 2 categories of LPP (§50):

“Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek or the lawyer to give, legal advice or assistance in a relevant context: Passmore: Privilege (4^th edn, 2020), §2-003.

Litigation privilege attaches to confidential communications between a client or his lawyer and a third party for the dominant purpose of use in litigation that, at the time the communication is made, is either proceeding or pending, or reasonably anticipated or in contemplation, and to which the client is or reasonably anticipates becoming a party, for the purpose of either (1) enabling legal advice to be sought or given or (2) seeking or obtaining evidence or information to be used in or in connection with the litigation concerned: Passmore, §3-006.”

(2)  LPP survives the death of the client.  Once established, it remains in existence until waived.  Upon the death of a client, the right to waive passes to the successor in title: §52.

(3)  There is a limited exception to LPP in the present context, arising from Re Fuld (No 2)[1965] P 405.  Under the Re Fuld exception, the court may require an attesting witness to produce statements made by him dealing with the question of attestation and execution notwithstanding their general privileged nature: §§67-68.

(4)  At §70, this court referred to Re Estate of Nina Kung (No 1), Supra and said:

“(1) The rule is applicable only to evidence of the attestation witness on questions of attestation and execution. The fact that the witness is an attesting witness (and as such a witness of the court) does not remove the privilege attaching to all his communications with the solicitor of a party. The protection is only removed in respect of statement of attestation and execution. (§§10-11)

(2)   Whilst an attesting witness is a witness of the court on other relevant issues like testamentary capacity and knowledge and approval, without more, that does not lead to the production of documents which might be protected by privilege. Communication between a solicitor with an attesting witness for the purposes of litigation is privileged except in so far as the statement contained evidence of that witness on attestation and execution. (§§12-15)”

(5)  Draft statements prepared or attendance notes taken cannot be treated as statements of the attesting witnesses until they were approved by them.  Before such approval, the drafts and attendance notes are only records kept and drafts prepared by the solicitor which may or may not be a full and accurate record of what had been said by those witnesses: Re Estate of Nina Kung (No 1) §16.

(6)  Accordingly, Lam J directed an affirmation regarding “drafts of statements and attendance notes, interview notes or file notes which contained evidence of the attesting witnesses on the question of attestation and execution” (§20).  But he rejected the discovery requests for correspondence relating to the preparation of those witness statements (item 6) or relating to the circumstances in which the plaintiff obtained the will, as they do not contain evidence of the attesting witness (item 7): Re Estate of Nina Kung (No 1) §22.

(7)  Unsurprising, the Re Fuld exception is narrowly circumscribed.  It does not apply to statements on the general history of the family and observations as to the health or possible eccentricities of the testatrix (Gordon v Hilton (1995) BC 9501693), and by parity of reasoning, testamentary capacity.

49.  The following holdings in the 2021 Decision are also important:

(1)  Anything concerning the drafting of the 2008 Will or taking instructions for the same or any matter prior to the moment of execution and attestation would by definition fall outside the scope of Re Fuld.[17]

(2)  The argument that LPP had been waived in relation to the taking of instructions, preparation and execution of the 2008 Will by the “disclosure and deployment of the SD” was rejected.  The SD was disclosed by WSC without Angela’s consent and she had made clear she would maintain privilege in the SD.[18]

50.  Vivien relies on the principle of collateral waiver as set out in her Skeleton §§42-44.  But, as submitted by Angela, she has omitted several important limits and her contentions are unsustainable:

(1)  Deployment of a privileged document does not automatically open a floodgate to a wide destruction of privilege more broadly.  It is not the rule that once deployed, all privileged documents related in some general way to that document or which can, in a general sense, be described as “relevant” to the issue must also be disclosed even if they deal directly with the subject matter in hand: Magnesium Elektron Ltd v Neo Chemicals & Oxides (Europe) Ltd (No 2) [2018] FSR 11 §47.

(2)  Vivien appears to contend that once a document (such as the SD) is being relied on, the party must disclose all the drafts of the document.  This is clearly incorrect.  It is an everyday occurrence that a party adduces evidence in the form of affidavits, witness statements and expert reports.  Drafts of these documents are almost certainly and will remain privileged.  The final document which is served is clearly not privileged.  See Passmore on Privilege (4^th edn, 2020) §§7-255, 7-258.  It would be extraordinary to contend that once the final document is served, there is a collateral waiver of all the draft affidavits, witness statements and expert reports.  The rule as regards collateral waiver is ultimately one of fairness.  It has never been suggested that a party is “cherry-picking” by relying on the final version of an affidavit, witness statement or expert report, without producing all the pre-existing drafts which are plainly privilege.

(3)  A key plank of Vivien’s “cherry-picking” argument is that Angela had voluntarily disclosed a significant number of documents: Vivien’s Skeleton §§34, 35.  But the mere production of the document on discovery or in some pre-trial procedures cannot in the ordinary course be treated as a waiver of anything beyond the document itself: MMI Research Ltd v Cellxion Ltd [2007] EWHC 2456 (Ch) §27 (Mann J).

(4)  Vivien’s Skeleton §41(1)-(2) contend that Angela relies on the SD.  The correct position is that Vivien relies on the SD at ADCC §§48-49. In her Reply, Angela admitted that the matters in the first sentence and the quoted words in the third sentence in ADCC §49 are stated in the SD, the truth of which are admitted: Reply §79.1.  Similarly, Vivien relies on further aspects of the SD in ADCC §§66, 68,which are admitted by Angela in Reply §§102, 104 (with the questions and answers pleaded in ADCC §68 further relied upon in Reply §132A.2(i)).

(5)  An application based on collateral waiver was premature unless it took place after the evidence had been adduced at the trial, namely, after it had been “deployed in court” in the strict sense:Urban Renewal Authority v Agrila Ltd[2010] 1 HKLRD 578 §27 (Le Pichon JA, with whom Rogers VP agreed).

D.  CLASS 1 – DOCUMENTS DRAFTED/CIRCULATED BY TAK WONG AND/OR WSC

51.  By Class 1, Vivien seeks:

“All documents (whether in hard or soft copies and whether originals or copies) created or drafted or circulated by [Tak Wong] and/or his firm Wong Shum & Co when acting as the solicitors of [Madam Yang] and sent to [Angela] or her agent(s) relating to the preparation, drawing up and/or execution of the Alleged 2008 Will (as defined in the Amended Defence and Counterclaim), the [2008 GPOA], the [Aliases Statutory Declaration], (the Alleged 2008 Will, the 2008 GPOA, the Aliases Statutory Declaration and matters incidental thereto collectively [the Subject Matters]) ...”

52.  Angela submits that the class is objectionable for one or more of the following reasons.

53.  First, this is one of many requests which are formulated in the form of “all documents” relating to a subject matter, followed by examples or sub-categories which are alleged to be part of that class. These requests are in breach of both the rule in Deak(in that it was formulated by reference to an issue: see paragraph 35 above) and the rule in Molnlycke (in that it would include irrelevant or already disclosed documents: see paragraph 36 above), and should be dismissed in limine.

54.  Second, Angela has already confirmed by way of affirmation that, save for the documents already disclosed, and subject to her responses to the sub-categories, she does not have possession, custody or power over any documents falling within Class 1.^[19] This must be conclusive.

55.  Third, even assuming documents within this class exist and are in the possession custody or power of Angela, and even overlooking the rule in Deak and Molnlycke, it is unclear what relevance would any such document has to the issues identified in Siu 3 §90 (see paragraph 25 above).

56.  In Vivien’s Supplemental Skeleton and Speaking Note for the hearing on 5 January 2024, I can see no meaningful response to Angela’s above objections.

E.  CLASS 2 - DOCUMENTS DRAFTED BY MR WU RELATING TO THE SUBJECT MATTERS

57.  Class 2 seeks “[a]ll documents (whether in hard or soft copies and whether originals or copies) created or drafted or circulated by Wu Wing Kit relating to the preparation, drawing up and/or execution of the Subject Matters, including but not limited to all draft(s) of the 2008 GPOA”.

58.  Angela submits that the request should be dismissed for one or more of the following reasons.

59.  First, it proceeds on a false premise, namely that Mr Wu was involved in the preparation, drawing up and/or execution of the Subject Matters.  However, Mr Wu has confirmed that he was not involved in the preparation, drawing up and/or execution of any such documents except the 2008 GPOA.[20]  The burden is on Vivien to demonstrate the 3 prerequisites, including the existence of documents in respect of the class described as a class, not as regards some in the class only (paragraph 34 above), and she has not put forward any basis for disbelieving Mr Wu.

60.  Second, none of the matters in Siu 3 §93 supports the inference that there exists draft(s) of the 2008 GPOA.  That (i) Tak Wong had produced drafts for the 2008 Will and (ii) Mr Wu was present at Madam Yang’s home when the 2008 Will was executed do not in any way support the speculation that draft(s) of the 2008 GPOA must have been made by Mr Wu (which he does not recall due to the passing of time).[21]

61.  Third, in any event, Angela has confirmed that she is not in possession, custody or power of documents within this class save for the documents already disclosed.[22]  Mr Wu has given the same confirmation after making inquiries with his former firm, Fred Kan & Co.[23]

62.  Again, it is to be noted that Vivien’s Skeleton contains no submission that are specifically referable to this class.  Moreover, in Vivien’s Supplemental Skeleton and Speaking Note for the hearing on 5 January 2024, I can see no meaningful response to Angela’s above objections.

F.  CLASS 3 - CORRESPONDENCE AND ATTACHMENTS PASSING BETWEEN VARIOUS PERSONS RELATING TO THE SUBJECT MATTERS

63.  Similar to Class 1, Class 3 begins with a general category seeking “[a]ll emails (including the attachments thereto, the electronic originals thereof and the electronic originals of the attachments thereto), correspondence and circulation of documents between (a) Angela, Tak Wong and/or Wong Shum & Co and (b) Madam Yang, Angela, Wu Wing Kit, Billy Ma and/or Dr Ben Cheung, relating to the Subject Matters or to the meeting with Madam Yang on 15 February 2008 ...”

64.  First, the purported basis for this all-embracing class is that there were “established channels of email communications amongst these personnel”.^[24]  Yet there is insufficient evidence to enable this inference to be drawn.  It is grounded in only 4 individual emails and a letter emanating from Tak Wong, which were merely for the purpose of sending out certain electronic or hard copy documents.^[25]  This is a far cry from showing a prima facie case of existence.  As this court observed in §44(1)(e) of the 2021 Decision:

“§1(5) even asks for correspondence by Wong with other persons and firms which relate to the preparation of the will and also the preparation of the SD. The existence of these correspondence is mostly based on a speculation that these persons were involved because Tak Wong had copied them in the recent correspondence with Vivien’s solicitors.”

65.  Second, the class lacks specificity.  There is no limitation on duration.  It seeks correspondence amongst a wide permutation of characters: “(a) Angela, Tak Wong and/or Wong Shum & Co and (b) Madam Yang, Angela, Wu Wing Kit, Billy Ma and/or Dr Ben Cheung”. The Molnlycke objection applies: see paragraph 36 above.

66.  Third, in any event, Angela has confirmed that she is not in possession, custody or power of documents within this class save as documents already disclosed^[26]; so have Tak Wong and Mr Wu (after making inquiries with FKC and Billy Ma).^[27]

G.  CLASS 4 - WILL FILE DOCUMENTS

67.  Class 4 seeks “[a]ll documents (whether original and/or copies and both hard copy and electronic copies thereof) which were at any time contained in the “Will File” of Wong Shum & Co, which was allegedly destroyed by Wong Shum & Co in about June 2015”.

68.  For the reasons set out in §§117-122 of Angela’s Skeleton, I uphold Angela’s objections targeted at Class 4 of Vivien’s request:

(1)  The request is not necessary.  The utility of this class is marginal at best, and does not warrant discovery.

(2)  This is an unreasonable request in that given that the Will File has been destroyed, there is no way for anyone to confirm what documents were or were not part of the Will File. 

(3)  Tak Wong has confirmed that he no longer has any documents in the hard copy Will File in his possession.[28]  Angela has confirmed that she has never been in possession of the Will File.[29]

(4)  DLA Piper Hong Kong (“DLA”) has confirmed that all those documents within the files kept by Clifford Chance (“CC”) in relation to the preparation of the SD (“CC Files”)which would appear to form part of the Will File have already been disclosed.[30]

69.  At this juncture, I should bring attention to, using a neutral term, a change of focus on the part of Vivien.  As a recent development since the issuance of the Summons, at the hearing on 5 January 2024, Vivien sought an order that Angela do (1) produce a further and better list encompassing all the electronic documents recently located by Tak Wong that were inspected by DLA on 29 September 2023 (“Inspected Documents”) other than the Segregated Documents Unrelated to the 2008 Will; and (2) in relation to any document over which privilege is claimed, provide the basis of such claim so that the matter can be properly adjudicated if necessary.  What happened was that on 29 September 2023, DLA was permitted by Tak Wong to inspect electronic versions of documents with the code “11070” (which according to Tak Wong were recently located,^[31] and which DLA did not yet have a chance of reviewing by the time Chan 6 was filed).  The process and outcome of the inspection is detailed in the 3^rd Affirmation of Au Wing Chi Sandy (“Au 3”).

70.  In this regard, I agree with Angela’s submission that Au 3 (as confirmed in Au 5) has adequately dealt with whether, and to what extent, the Inspected Documents fall within the requests under the Summons. Thus, there is no need for any further order (whether for enumeration of documents by a further and better list, or for production).

(1)  The starting point is that the Inspected Documents falling within the classes under the Summons, ie those identified at Au 3 §§13.2, 13.5, 13.8, 13.10,14.2, 14.3, 14.7, 14.10, 16.4(a), have been provided by Tak Wong to Vivien’s solicitors on 25 October 2023: Siu 5 §§10(j), 12(b).

(2)  Save for the above documents, the 2007 Codicil, and documents falling within Class 9 which are withheld from disclosure, there are no other Inspected Documents falling with the requests under the Summons.

(3)  As confirmed already in Au 3 §§13.13 and 14.4, save those referred to in Au 3, none of the Inspected Documents fall within Classes 1 & 3: see also Au 5 §9.1.

(4)  As to Classes 2, 4-8, by reason of Au 3 §11 (which states that Located Electronic Documents falling within the requests under the Summons would be dealt with in the remaining paragraphs in Au 3), there are no Inspected Documents falling within Classes 2, 4-8, save and except the 2007 Codicil, and subject to the caveat for Class 4 (the Will File) that Angela and DLA cannot confirm what documents formed part of the Will File, as explained in Chan 6 §21.2.

(5)  As to Class 9, no Inspected Documents fall within this class, save those referred to in Au 3, and those withheld for the reasons explained in Au 3 §§16.2-16.4.

71.  As regard the Inspected Documents, Vivien submits that they are in practical reality within the power of Angela in that when Vivien recently asked for information/documents, Tak Wong proceeded along the modus of seeking Angela’s views/consent, thus highlighting Angela’s power over the documents.

72.  I do not agree.  In this regard, I accept Angela’s submissions at paragraph 15 of her Supplemental Skeleton that: (1) Vivien’s submissions ignore the point that Tak Wong had refused to allow DLA to take copies of the documents, which can only mean that Angela has no power over them.  If Angela can only obtain the documents with Vivien’s consent, this rather negatives the notion that the documents are in the “power” of Angela; (2) In any case, this point is academic in light of the confirmation that no other documents fall within the scope of the Summons.

H.  CLASS 5 - DOCUMENTS RELATING TO THE PREPARATION OF THE SD

73.  Class 5 seeks “[a]ll draft(s) (whether original and/or copies and both hard and electronic copies thereof) of the Tak Wong SD, and any correspondence and/or other communications in writing (including but not limited to letters, emails) and notes including attendance notes, interview notes or file notes relating to the giving or the taking of instructions for or the making or reviewing of the Tak Wong SD or any of the draft(s) thereof”.

74.  This request relates to documents in the CC Files kept by CC in relation to the preparation of the SD.

75.  As pointed out by Angela, the starting point is that Angela has already disclosed documents containing evidence of the attesting witnesses on the question of attestation and execution with respect to the 2008 Will (“Excepted Documents”) in accordance with Re Fuld and Re Estate of Nina Kung (No 1), ie those set out in Schedule 2 to Chan 6.[32]

(1)  Such documents fall within 3 broad categories: (a) draft SDs approved by Tak Wong (items 2, 6, 8, 9, 10); (b) attendance notes approved by Tak Wong (item 1); and (c) correspondence from WSC containing statements and comments from Tak Wong (items 3, 4, 5, 7).

(2)  Redactions are applied to contents falling outside attestation and execution, which are privileged.

76.  Angela submits, and I agree, that there is no basis for Vivien to persist with the request in light of the above disclosure.

77.  First, Vivien’s Skeleton §§75-85 takes the position that Angela has not made a sufficient claim of LPP in respect of the SD. Vivien submits that no explanation at all is given as to whose the privilege is, or what kind of privilege is relied upon, or how the privilege is said to arise and apply.

78.  I have considered Angela’s response and I agree that Vivien’s contentions are wholly unsustainable:

(1)  First, this position is wholly unrealistic and without merit.  It is plain from the very nature of the SD that it was made in anticipation of a future challenge to the 2008 Will, and thus in contemplation of litigation.  It is plainly covered by litigation privilege.

(2)  Second, this was all along the position of Vivien herself and the court.  Vivien has previously pleaded positively that the SD was made for the purpose of litigation: ADCC §73.   

(3)  The 2021 Decision at §100(1)-(3) proceeded on the basis that the SD was subject to litigation privilege because: (i) the SD was prepared at the request of CC who acted as Angela’s solicitors.  The privilege belongs to Angela in her own right; (ii) The SD was prepared with the intention of providing evidence as to the preparation and execution of the 2008 Will in case it is contested upon Madam Yang’s death.

(4)  Indeed this court rejected a request for correspondence or communications relating to the advising, preparation, drafting, drawing up and execution of the SD, or the taking of instructions in respect of the SD: see 2021 Decision §§98, 100(3)-(5). In particular, the court noted that such correspondence is similar to item 6 of the request considered in Re Estate of Nina Kung (No 1), which held at §22 that the correspondence sought would not contain evidence of attestation and execution and would not fall within the Re Fuld exception.  This is the same as the second part of the request under Class 5 of the Summons. 

79.  Second, Vivien then takes a point about “over-redaction” at §§86-87 of her Skeleton.  Her criticisms as to the adequacy of disclosure and the scope of redactions in the Excepted Documents are unsustainable:

(1)  Chan has sworn that the redactions/non-disclosure were unrelated to the execution and attestation of the 2008 Will.[33] There is simply no sustainable challenge to DLA’s confirmation on affirmation in light of the applicable principles discussed at paragraph 46 above. 

(2)  In her affirmation evidence, Vivien did not attempt to particularise her challenge to the redactions – all she did was to say she did not accept the redactions, and then refer to a list of matters with no apparent connection to the redactions.[34]  Such bare assertion was deprecated in Wong Kar Gee Mimi§52.  Indeed, it is not even enough to assert that the redacted parts are potentially relevant: Wong Kar Gee Mimi§51.

(3)  The only specific complaint raised in Siu 4 is that the attendance note for the meeting on 5 July 2012 was heavily redacted, including some parts falling under the heading “Re: Execution of the Will on 15^th February 2008”.[35]  But that heading does not preclude information pertaining to matters prior to the moment of execution and attestation (which is privileged as held in the 2021 Decision[36]) from being included under it.  Given that the redactions were specifically confirmed by DLA, such a bare assertion does not form any basis to challenge the redactions.

(4)  It is unfair that other alleged over-redactions were raised in Vivien’s Skeleton §86(1)-(8) for the first time, which were absent in Siu 4.  In any event, the points made at §§86(1)(a), 86(3), 86(6)(a) are to the same effect as that discussed in sub-paragraph (3) above, and they must fail for the same reason.  §§86(2)(a), 86(4), 86(5)(a) are just bare assertions since there is nothing in the quoted material to indicate that the redacted parts contain evidence of execution or attestation.  It is not enough to assert that they are “likely” or “apparently” relate to the execution of the 2008 Will.

(5)  Vivien’s Skeleton §86(7)-(8) and 87 appear to have misunderstood the exception in Re Fuld - it only relates to evidence of execution and attestation.  Evidence as to what Mother said about the reason for execution, especially when the conversation took place after the execution, does not fall within this exception.  Nor would all matters that transpired on the same occasion as the execution - for example, if the testatrix spoke to her lawyer about a completely unrelated legal dispute (eg she was considering suing her neighbour) on the same occasion as the execution, that would not be covered by the Re Fuld exception.

80.  Third, Vivien’s Skeleton §§92-105 then made lengthy submissions about collateral waiver in respect of the SD.  This argument is completely misconceived - it fails to appreciate that the occasion giving rise to the privilege in respect of the drafting of the SD is completely different from the one for the drafting of the 2008 Will.  The fact that Angela has put forward a positive case in relation to the circumstances of the drafting of the 2008 Will does not mean she has deployed any privileged material relating to the drafting of the SD.  Moreover, as pointed out at paragraph 50(4) above, although Vivien’s Skeleton contends that Angela relies on the SD, the correct position is that Vivien relies on the SD at ADCC §§48-49.  

81.  Nor would the deployment of the SD mean that privilege for the drafts of the SD had been waived: cf Vivien’s Skeleton §§99-105.  This is plainly incorrect, see paragraph 50(2) above - if this is right, every time a party serves a witness statement the privilege in all the drafts would be waived.  Indeed, in Re Estate of Nina Kung (No 1), the witness statements of the attesting witnesses were voluntarily produced (§§1-2), and there was no question of collateral waiver of the privilege in respect of the drafts or attendance notes or other communications relating to the drafting of the statements.  There would have been no point of discussing the Re Fuld exception if collateral waiver applied. 

I.  CLASS 6- DOCUMENTS RELATING TO THE PREPARATION OF THE 2005 CODICILS

82.  Class 6 seeks “[a]ll correspondence and/or other communications in writing (including but not limited to letters, emails, and/or messages via any messaging application software) exchanged between any of Mabel Lui or DLA Piper Hong Kong (or its predecessor Dibb Lupton Alsop) on the one hand, and Madam Yang and/or Angela or her agent(s) on the other hand, relating to the preparation, drawing up and/or execution of the 2005 Codicils”.

83.  Mabel Lui was a solicitor of DLA who drafted the 2005 Codicils and left DLA in 2014.^[37]  On 9 April 2021, Mabel Lui returned to DLA a file which she described as “on ‘Mrs Chen’s will’ which contains copies of the Four Scripts” (“Mabel Lui File”).^[38]

84.  Within those documents in the Mabel Lui File, DLA has confirmed that the following have been disclosed: (1) copies of the 2005 Codicils; (2) a draft of the December 2005 Chinese Letter; (3) a draft of the December 2005 English Letter; and (4) a draft of Madam Yang’s 1984 Will.^[39]  Apart from the above, the Mabel Lui File only consists of irrelevant documents and documents falling within either Class 6 or Class 7 covered by LPP[40] - this is because Class 6 is formulated to include correspondence “relating to the preparation, drawing up and/or execution of the 2005 Codicils” which plainly encapsulates matters prior to execution and attestation so as to fall outside of the rule in Re Fuld: see paragraph 49(1) above.

85.  As such, I agree with Angela that there is no basis to probe any further for Class 6.

J.  CLASS 7 - DOCUMENTS ON DLA’S FILE(S) RELATING TO THE 2005 CODICILS

86.  Same consideration as Class 6 above.  The file(s) referred to in this request are the Mabel Lui File.[41]

K.  CLASS 8 - FURTHER UNDISCLOSED TESTAMENTARY SCRIPTS

87.  Class 8 asks for “all undisclosed testamentary scripts of Madam Yang, including but not limited to (a) those stored in electronic forms in “O:CORP\000942-1” or “O:CORP\000942-Chen” on DLA’s server or computers, and (b) any other draft will, codicil or testamentary instrument of Madam Yang”.

88.  The request under Class 8 was initially abandoned at the hearing on 5 October 2023, but revived in Vivien’s Supplemental Skeleton lodged for the hearing on 5 January 2024.  At Vivien’s Supplemental Skeleton §4, Vivien stated that her original position was not to pursue this category of documents but, owing to the surprising uncovering of the Copy 2007 Codicil and the subsequent disclosure of its terms to her solicitors Anthony Siu & Co (“ASC”) for the first time on 25 October 2023, she now takes the position that further documents (including the original executed version of the 2007 Codicil (the “Original 2007 Codicil”) and information relating to this document are required.

89.  Vivien submits that under RHC O24 r7, the court can order discovery of a testamentary script on the basis that a party has possession, custody or power of the same.  In this regard, what the party seeking discovery needs to do is only to show a prima facie case based on probability arising from the surrounding circumstances of the case: Hong Jing Co Ltd v Zhuhai Kwok Yuen Investment Co Ltd, HCA 156/2006 (unrep, 23/12/2008) §24 (Chu J, as she then was).

90.  In response, Angela sets out her position as follows in her Supplemental Skeleton:

(1)  Angela has already made an affirmation of testamentary script in relation to the 2007 Codicil (Angela 9). In short, Angela’s position is that at present, other than the electronic copy of the 2007 Codicil produced by Tak Wong, she at present has no knowledge of any other version of the document (including the original) or any other testamentary script: Angela 9 §§3-5.  In a subsequent letter by DLA dated 27 November 2023 §1.1 (SYFA-76), it was made clear that Angela is unable to recall anything about the 2007 Codicil (hence she “at present” has no knowledge about the same).

(2)  Despite this, Angela is willing to make an affirmation to confirm her inability to recall the 2007 Codicil, and the inquiries that has been made in respect of the 2007 Codicil, within 35 days.  For the avoidance of doubt, any order to be made in respect of this class should be in the usual format, ie for Angela to “make an affirmation stating whether any document within Class 8 is, or has at any time been, in her possession, custody or power, and if not now (but has been) in her possession, custody or power, when she parted with it and what has become of it”.  The order should not contain the additional wording suggested by Vivien.

91.  I am satisfied that the affirmation offered by Angela as  referred to in paragraph 90(2) above is sufficient to fulfil Vivien’s entitlement under RHC O24 r7.

92.  Further or alternatively, Vivien seeks an order in terms of the Interrogatories Summons which was taken out on 22 December 2023.  This shall be dealt with separately in Section O below.

L.  CLASS 9 - MEDICAL RECORD: CAPACITY ASSESSMENTS 2005-2014

93.  The broad category of Class 9 seeks documents “[i]n relation to any doctors who were instructed to carry out and/or who did carry out a capacity assessment, or a consultation relating to mental condition, or any other assessment or consultation for the purpose of litigation or the execution of any legal documents, of Madam Yang in the period between 1 January 2005 and 31 May 2014”.

94.  First, Class 9 seeks documents relating to the assessment or consultation “for the purpose of litigation or the execution of any legal documents”.  Therefore, as submitted by Angela, by definition, Class 9 necessarily includes confidential communications between solicitors and third parties (various doctors) which come into existence for the sole or dominant purpose of either (1) enabling legal advice to be sought or given or (2) seeking or obtaining evidence or information to be used in or in connection with the litigation concerned, and must be covered by LPP (subject to paragraph 98 below).  This is obvious from the nature of the documents requested in this class.  The complaint at Vivien’s Skeleton §121 that the claim for LPP was insufficient cannot be correct.

95.  LPP does not only apply to the final report, but also to draft reports and comments on a draft report (Jackson v Marley Davenport Ltd [2004] 1 WLR 2926 §§13-14 (Longmore LJ), applied in Helm Hong Kong Ltd v Au Tat Kei Decky, HCA 1517/2006 (unrep, 4/06/2010) §§16-17 (DHCJ Carlson)), as well as general correspondence with the expert (Ho Chi Sing v Tam Kwok Ming, HCPI 161/2000 (unrep, 2/06/2008) §§12-13 (Fung J)).

96.  Second, this is yet another indiscriminately wide class, defined with reference to “any doctors”, “any other assessment or consultation” (when we are concerned with only Madam Yang’s mental conditions), and a duration from 2005 to 2014 (when the 2008 Will was executed in 2008).  The Molnlycke objection plainly applies: paragraph 36 above.

97.  Third, subject to paragraphs 98 and 99 below, DLA, on Angela’s behalf, have carried out extensive inquiries, having (1) retrieved from CC and reviewed their communications with the various doctors who carried out mental capacity assessments of Madam Yang during the pendency of HCA 1739/2010; (2) made inquiries with Dr John Wong Yee Him and Dr Chung-Kwong Wong respectively;^[42] and (3) confirmed that these documents (save those disclosed) do not fall within this class.  There is no basis for Vivien to suggest otherwise.  The fact that Angela has produced some documents falling within this class cannot be the basis to suggest that there are other documents not disclosed: cf Vivien’s Skeleton §122.

98.  Fourth, Angela accepts that medical reports which have been deployed or referred to in court proceedings (such that any privilege over the same would have been waived), together with the instructions to the expert (Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56 §48 (Rogers VP)) should be disclosed.  Therefore, medical reports which fall within this category have been disclosed, ie items 1 to 4 of Schedule 3 to Chan 6.^[43]

99.  As to items 5 to 17 of Schedule 3 to Chan 6, Angela’s position is that:

(1)  As per the annotations, they were previously not disclosed on the ground that they have been deployed in in camera proceedings (FCMC 15415/2009, being the divorce proceedings between Madam Yang and Dr Chen), and hence leave would be required for their disclosure, despite the waiver of privilege.

(2)  Upon checking, the Report of Dr John Wong dated 15 March 2011, to which items 5 to 11 relate, had been deployed in the trial in HCA 1739/2010.  Nevertheless, that report (and the related items) might still be subject to the confidentiality restriction in FCMC 15415/2009, relying on Mrs A v The Executors of the Estate of A [2018] HKFC 119.

100.  In response, Vivien points out that, as is clear from §7 of the Ruling in Mrs A v The Executors of the Estate of A, “Rule 121(2) of the Matrimonial Causes Rules … provides that no document filed in the matrimonial proceedings, other than a decree or order made in open court, shall be open to inspection by the public without the leave of the court”. Plainly, this has no application to a document which is deployed in other proceedings in open court.  The fact that it is also used in the matrimonial proceedings is purely incidental and would not give rise to confidentiality when it has otherwise been used with no confidentiality attached.

101.  I agree.  In the circumstances, I am of the view that Angela should produce to Vivien the documents enumerated as items 5 to 11 of Schedule 3 to Chan 6.

M.  CLASS 10 - AUDIO RECORDING

102.  Vivien no longer insists on this class: Vivien’s Skeleton §8.

N.  CLASS 11 - RECORDS SHOWING USAGE OF MORTGAGE LOAN

103.  Class 11 seeks “[r]ecords (including ledgers, accounts, statements, receipts, cheques, agreements, advices) and communications showing the use of the mortgage loan borrowed by Jadespring Limited/Wei An Development Limited from United Commercial Bank from about February/March 2008.”

104.  Angela submits that the breadth of this class is disproportionate to its marginal relevance, if any.  I agree.  The relevant transactions were pleaded by Vivien for the specific purpose of alleging that Madam Yang was accustomed to having Angela organise her financial affairs, as part of the factual matrix that purportedly supports her claims in undue influence and/or fraud/fraudulent calumny.^[44]  Angela does not dispute the existence of the transactions.^[45]  As such, it is unclear what information of “evidential materiality” (Lee Sai Nam §§49-50) will surface by the accounting records - they will not shed any light on whether Madam Yang entered into those transactions by informed and free choice.

105.  By seeking the full tranche of accounting records showing the use of the loan, the class is also bound to include irrelevant documents.  The Molnlycke objection applies: paragraph 36 above.  As Mimmie Chan J put it in Billion Lead Investment Ltd, “it would be oppressive and unnecessary to order discovery of documents for each and every transaction entered into by Ming, and every payment made by Ming, irrespective of their importance or marginal relevance to the matters in dispute.” (§20)

106.  Further and in any event, it is plain that this request is directed at finding out the information as to how the mortgage moneys were used.  A discovery request for a wide class of document is a blunt instrument and it should not be resorted to when the information sought can be elicited by way of a Request for Further or Better Particulars or Interrogatories: see Li Tak Yee Samuel §106.  

O.  THE INTERROGATORIES SUMMONS

107.  The Interrogatories Summons, which seeks an order for Angela to answer interrogatories purportedly relating to the whereabouts of the 2007 Codicil’s original, is taken out pursuant to section 7(2) of the Probate and Administration Ordinance (Cap 10) (“PAO”).

108.  Angela has already made clear that she presently has no knowledge in relation to any other version of the 2007 Codicil, as she is not able to recollect anything about it.  Her only knowledge now is that an electronic copy of the same was discovered in Tak Wong’s possession: see paragraph 90(1) above.

109.  It would appear that Vivien is taking out the Interrogatories Summons because she does not wish to believe Angela.

(1)  Vivien contends that Angela 9 flouts the requirements of RHC O76 r5 in three respects: (i) it fails to swear to the Original 2007 Codicil of which she clearly has knowledge; (ii) it fails to swear to whether the Original 2007 Codicil is in her possession or under her control; and (iii) it fails to give the name and address of the person who has possession or control, or state that Angela does not know the name or address of that person.

(2)  Vivien further submits there is more than sufficient prima facie evidence that Angela was involved in the process leading to the making of the 2007 Codicil.  In these circumstances, for DLA to simply reply “at present Angela knows nothing” and for Angela to then depose that “at present I know nothing” is a blatant attempt to shut down the enquiry that may lead to the tracing and production of the Original 2007 Codicil. It is a clear attempt at suppression of an important piece of evidence in this case.  On this basis, relief under section 7(2) of the PAO is sought.

110.  Section 7 of the PAO provides:

“(1) The court may, on motion or petition or otherwise, in a summary way, whether any proceedings are or are not pending in the court with respect to any probate or administration, order any person to produce and bring into the Registry, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he has knowledge of any such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or upon interrogatories respecting the same, and such person shall be bound to answer such questions or interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to an action in the court and had made such default.

(3) The Registrar may, whether or not any proceedings are pending in the court, issue a subpoena requiring any person to produce and bring into the Registry any paper or writing being or purporting to be testamentary, which may be shown to be in the possession, within the power, or under the control of such person; and such person, upon being duly served with the said subpoena, shall be bound to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default as if he had been a party to proceedings in the court, and had been ordered by a judge to produce and bring in such paper or writing.”

111.  Applications under PAO section 7(2) are rarely made: Wong Wai Ming v Wong Shing Chi Johnly, HCAP 28/2012 (unrep, 6/01/2014) §16.  The applicable principles are as follows:

(1)  The purpose of PAO section 7 is to, inter alia, guard against any fraud or suppression of testamentary instruments, which would usually have the effect of displacing interests under intestate succession as well as a deceased’s earlier wills: Wong Wai Ming §31.

(2)  The application is made where it is believed that a person has knowledge of a script but either will not make any statement on the matter or makes one that appears misleading or deliberately incomplete: Williams, Mortimer & Sunnucks: Executors, Administrators & Probate (22^nd edn, 2023) §25-19  cf Wong Wai Ming §§23-24.

(3)  Given the severe consequence of default of an order made under PAO section 7(2), ie a sanction of contempt of court, there needs to be cogent evidence showing reasonable grounds to believe that the examinee has knowledge of the testamentary document: Wong Wai Ming§32.

(4)  The application should be made for the genuine purpose of tracing a deceased’s testamentary papers, and not for any ulterior motives, including to fish for evidence: Wong Wai Ming§§29(2), 33.

(5)  In particular, the examination should not be used to obtain from attesting witnesses an account of the circumstances attending the execution of the will: see Williams, Mortimer & Sunnucks §25-19 and Wong Wai Ming §26, both citing Evans v Jones (1867) 36 LJP & M 70.

(6)  Lastly, all the relevant circumstances such as the nature and history of disputes concerning a deceased’s estate, the relationship of the person against whom an order is sought with a deceased, etc may be also taken into account: Wong Wai Ming §34.

112.  Angela submits that the Interrogatories Summons should be dismissed.

113.  First, the Interrogatories Summons is misconceived.

114.  The 2007 Codicil has now been disclosed.  There is no suggestion that Vivien would have any benefit under the 2007 Codicil.  Her purpose in seeking an order for examination is plainly not for tracing testamentary documents.

115.  Second, the Interrogatories Summons is in any event premature.

116.  The necessity is undermined given that Angela is willing to make an affirmation as mentioned in paragraph 90(2) above.

117.  Therefore, Angela is not refusing to make a statement, and the court is in no position to determine if her statement is misleading or deliberately incomplete before she is given an opportunity to make such statement: cf paragraph 111(2) above.

118.  Third, in any case, even based on present materials, there is no basis to suggest there are reasonable grounds to believe that Angela has knowledge of the whereabouts of the 2007 Codicil’s original, but has suppressed such information from Vivien.

119.  The fact that the 2007 Codicil concerns specific legacies to Angela, and the possibility that she might have been present at its execution (Siu 6 §§16-18) does not make her statement in Angela 9 §§3-5 incredible. It is important to bear in mind that the 2007 Codicil was executed a long time ago.  There is no dispute that it did not purport to make any substantive changes to division of Madam Yang’s assets, but only varied the recipient of Angela’s share from herself to trusts formed for her benefit.  On Angela’s case, it also became spent after the execution of the 2008 Will. Further, Madam Yang’s inter vivos dispositions as confirmed by her Deed of Gift of 12 December 2012 had also disposed of Madam Yang’s assets previously subjected to testamentary arrangements under her 2005 Codicils and thus the 2007 Codicil. It is unsurprising that Angela does not recall about the 2007 Codicil.

120.  Fourth, the scope of the interrogatories is excessive and wholly inappropriate.  The purpose of a large part of these interrogatories is not to trace the 2007 Codicil’s original, but to obtain from Angela an account of the circumstances surrounding the execution of the 2007 Codicil and beyond.

121.  Fifth, the purpose of the provision, being to guard against any fraud or suppression over any testamentary instruments which might have an impact on the administration of the estate, has no application here given that a copy of the 2007 Codicil had already been made available; and a fortiori where Vivien is not even a beneficiary under the 2007 Codicil.

122.  Having considered the applicable principles regarding section 7 of the PAO as set out in paragraphs 110 and 111 above, I would agree with Angela’s submissions and hold that the Interrogatories Summons should be dismissed.

P.  CONCLUSION

123.  I order that Angela do file and serve the affirmation as referred to in paragraph 90(2) above within 35 days from the date hereof.

124.  For the reasons set out above, I order that the Summons and the Interrogatories Summons be dismissed, save that Angela do produce to Vivien the documents enumerated as items 5 to 11 of Schedule 3 to the 6^th Affidavit of Chan Heung Wing within 14 days from the date hereof.

125.  I order that the costs of and occasioned by the Summons and the Interrogatories Summons be paid forthwith by the defendant to the plaintiff, such costs are to be taxed if not agreed with a certificate for 3 counsel.

126.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

127.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.